Complainant

Respondent

Parties

Ross  Forde

Mayo County Council

Representatives

  Self-Represented

 Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057177-001

17/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057177-002

17/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057177-003

17/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00057177-005

17/06/2023

The Complainant, an Assistant Fire Officer with the Respondent, gave evidence on affirmation.

The Respondent was represented at the hearing by Mr. Keith Irvine of the LGMA. Olivia Gallagher, AP in HR, gave evidence on affirmation, as did Helen Burke, also from the HR department. Stephen Burke was in attendance for the Respondent but did not give evidence.

Submissions were received in advance of the hearing and considered.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-001

It was the Complainant’s evidence that when he commenced his employment with the Respondent, he was placed on the incorrect point of the pay scale.

It was his evidence that he was treated as a new entrant yet was not required to complete basic training courses.

Upon inquiry, it was his evidence that he was incorrectly placed on the scale, but no specific amount of the deduction was put forward by him. Instead, it was his evidence that his loss was ongoing every month.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-002

It was the Complainant’s evidence that he should have been paid €494.30 on 8 July 2022.

Section 7 of the Terms of Employment (Information) Act, 1994 - CA-00057177-003

It was the Complainant’s evidence that he was placed on the first point of the pay scale for new entrants, despite having nine years of experience with Galway County Council within the fire service.

He submitted that the Respondent did not notify him that he would not receive incremental credit for his previous years of service.

Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 - CA-00057177-005

The Complainant submitted that he believed the Respondent was treating him differently where he previously was a part time worker.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-001

It was submitted on behalf of the Respondent that the complaint fell outside the time limits for under the 1991 Act, as the Complainant's case was that the alleged unlawful deductions occurred on 8 July 2022, while the Complaint Form was dated 17 June 2022.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-002

The same preliminary objection was put forward under the previous complaint was also relied upon by the Respondent.

Section 7 of the Terms of Employment (Information) Act, 1994 - CA-00057177-003

It was submitted that the Complainant commenced employment on 8 July 2022 and was provided with a contract of employment for the position of Assistant Fire Officer.

It was further submitted that, at all times, he was aware of the terms and conditions of his employment and that no changes had been made since that date.

The Respondent argued that the legislation relied upon by the Complainant relates to the provision of a contract of employment which, in this instance, was never amended.

An objection was raised that the Workplace Relations Commission does not have jurisdiction over this complaint, as it falls outside the six-month time limit under the 1994 Act.

Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 - CA-00057177-005

By way of objection, the Respondent submitted that the issues raised related to a different employer than the Respondent.

It was further submitted that the complaint fell outside the time limit provided for in the 2001 Act. Consequently, the Workplace Relations Commission had no jurisdiction to hear the complaint.

The third objection raised by the Respondent was on the basis that the Complainant is not a part-time employee within the meaning of the legislation. It was submitted that he was, in fact, a full-time employee, similar to the other employees of the Respondent who worked a 35-hour week. Reference was made to his contract of employment.

It was submitted that, for these three reasons, the Workplace Relations Commission had no jurisdiction to hear this complaint.

Preliminary Objections

It is first necessary to address the Respondent’s objection on the time limit. Section 41 (6) of the Workplace Relations Act 2015 provides:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

No extension of time was sought.

The Compliant was received by the Workplace Relations Commission on 17 June 2023. Therefore, the period of contravention to which the complaints referred relate to is 16 January 2023 to 17 June 2023.

I do not have the jurisdiction pursuant to Section 41 (6) to consider complaints outside of this time period.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-001

In light of the Complainant’s evidence that the deduction is ongoing, the period 16 January 2023 to 17 June 2023 is considered.

The contract of employment signed by both parties on 8 July 2022 was relied upon by both parties.

The pay scale is set out clearly at Clause 9 , Renumeration. Of particular relevance is the following:-

“Your commencing salary shall be on the 1st point of the salary scale, i.e. €40,422 per annum. Your incremental date is the 08th July, subject to approval.”

I find the contract is clear as to the starting salary.

Consequently, I find there has been no unlawful deduction.

I find the complaint is not well founded.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-002

I find I have no jurisdiction in relation to this complaint where it was submitted the date the payment was deducted was 8 July 2022.

I find the complaint is not well founded.

Section 7 of the Terms of Employment (Information) Act, 1994 - CA-00057177-003

There was no evidence presented from either party that since 8 July 2022 there had been any amendment to the contract of employment. Consequently, I find there has been no change to the terms of employment and the complaint is not well founded.

Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 - CA-00057177-005

Preliminary Objection

Section 7 of the Act defines a part time employee:

“7.—(1) In this Part—

“part-time employee” means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her”

Section 9 of the Act, under which complaint has been brought states:-

“9.—(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”

The Complainant confirmed, when asked in cross examination, that he was only every employed on a full-time basis with the Respondent. Consequently, I find that where it is accepted that he is a full time employee with the Respondent, the complaint is not well founded.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-001

I find the complaint is not well founded.

Section 6 of the Payment of Wages Act, 1991 - CA-00057177-002

I find the complaint is not well founded.

Section 7 of the Terms of Employment (Information) Act, 1994 - CA-00057177-003

I find the complaint was not well founded.

Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 - CA-00057177-005

I find the complaint is not well founded.

Payment of Wages – Terms of Employment – Protection of Part Time Workers